State v. Donnelly

Decision Date19 November 1895
Citation32 S.W. 1124,130 Mo. 642
PartiesThe State v. Donnelly, Appellant
CourtMissouri Supreme Court

Appeal from Audrain Circuit Court. -- Hon. E. M. Hughes, Judge.

Affirmed.

Edmonston & Cullen for appellant.

(1) The court erred in failing to instruct upon all questions of law in giving instructions not warranted by the evidence and in giving illegal instructions. State v. Taylor, 118 Mo. 153; State v. Welsor, 118 Mo. 124. (2) The jury should have been instructed on murder in the second degree. State v. Williams, 69 Mo. 112; State v Dierberger, 96 Mo. 666; State v. Wieners, 66 Mo. 13. (3) The court should have instructed that the indictment constituted no evidence against defendant. State v. Brown, 115 Mo. 409; State v Duncan, 116 Mo. 302. (4) The court erred in refusing to give instructions A, B, and F asked by defendant. (5) There was no evidence tending to show that McKinney struck the blow and the instruction given by the court based on that theory was erroneous. The mere fact that the accomplice and defendant were together is no evidence of a common criminal purpose. State v. Kempf, 26 Mo. 429; State v. Ross, 29 Mo. 32; State v. Flanders, 118 Mo. 237. (6) The court erred in submitting the case to the jury upon the uncorroborated testimony of an accomplice.

R. F. Walker, attorney general, and Morton Jourdan, assistant attorney general, and J. G. Trimble for the state.

(1) The motion for a new trial was properly overruled. (2) The instructions properly stated the law, and cover all the facts of the case. State v. Ellis, 74 Mo. 220; State v. Wieners, 66 Mo. 13; State v. Dawson, 124 Mo. 422; State v. Woolard, 111 Mo. 228. (3) The instructions refused by the court were properly refused.

OPINION

Burgess, J.

From a conviction of murder in the first degree for killing one Samuel Turner, on the twenty-eighth day of July, 1893, in Audrain county, defendant appealed. The motive for the assault seems to have been robbery.

The murder is charged to have been committed on the night of July 29, 1893. About two o'clock on that morning deceased was found lying unconscious on a side track of the Chicago & Alton railroad in the city of Mexico in said county. One of his pants pockets was turned wrong side out. He had no money or other property about his person. He was carried to the city prison, in which he was found dead about 6 o'clock the same morning. On a post mortem examination his skull or right temporal bone was found to be fractured, causing the blood to clot on the brain, producing paralysis resulting in his death.

During the evening before the homicide deceased, one William McKinney, and defendant spent the evening in drinking intoxicating drinks. Deceased had a small sum of money the day before his death, of which defendant and McKinney had knowledge, as they had been drinking together from a tin bucket, the beer being purchased and paid for by deceased. They remained together drinking beer a large portion of the day, and were seen together as late as 12 o'clock at night, when they were seen going south near the depot. Soon after that time three men suiting their description were seen about the place where deceased was found on the railroad track. The tin bucket from which deceased, McKinney, and defendant had been drinking beer was found east, and near, where deceased was found, and subsequently a pocketbook, shown to have belonged to him, was found some two blocks away. None of his property or money was found on the person of defendant. McKinney and defendant were separately indicted for the murder.

Upon the trial McKinney was introduced as a witness on the part of the state, and testified that, after 12 o'clock on the night of the homicide, he, deceased and defendant went near to and beyond the spot where deceased was found, then turned back and were all walking close together on the railroad track, he with his left hand resting on the right arm of deceased, and defendant close to them in the rear, when he heard a blow, and, turning, saw deceased fall; that defendant then struck at deceased again and jumped down toward him, and then both he and defendant left and went south; that defendant said nothing to him about the assault before nor after it was committed, and that it was a surprise to him; that shortly after it occurred he and defendant returned and found deceased moving around, when defendant remarked: "Oh, he is not hurt;" that he stayed with defendant from that time until near 10 o'clock that morning, at the fair grounds, one mile from town. He also stated that he knew nothing about the pocketbook or money of deceased.

There was some evidence tending to show that defendant was at the depot and electric light house that morning when the 3 o'clock train arrived.

The court instructed the jury for murder of the first degree only, and defendant's first contention is that in so doing, it committed error; that it should have instructed for the "lesser grades of homicide," and especially for murder in the second degree. This contention is unquestionably correct, provided there was evidence upon which to predicate such an instruction or instructions, otherwise it is not. While section 4208, Revised Statutes, 1889, makes it the duty of the trial court to instruct the jury in writing upon all questions of law arising in the case on trial, whether asked to do so or not, it is only upon such questions of law as arise in the case that instructions are required.

It seems from the instructions that the case was submitted to the jury upon two different theories, one that the murder was willful, deliberate, and premeditated, the other that the homicide was committed in the perpetration or attempt to perpetrate robbery.

As to whether the murder was committed deliber ately, premeditatedly, and with malice aforethought, were questions for the jury, under proper instructions, providing there was evidence to support that view of the case. And we think there was. Defendant and deceased had no difficulty before the homicide, and while walking quietly along the railroad track, having no reason whatever to expect any violence to his person at the hands of defendant, the latter, whom he knew was close behind him, with a blow inflicted by some instrument broke his skull, from the effects of which he shortly thereafter died. The homicide could not have been more deliberate had the defendant laid in wait for his victim, and then assaulted and killed him. There was nothing to reduce the homicide to murder in the second degree.

The definition of deliberately, as defined by the court, is criticized by defendant. It is as follows:

"'Deliberately' means done in a cool state of the blood, not in sudden passion engendered by a lawful or some just cause of provocation, and the court instructs the jury that in this case there is no evidence tending to show the existence of any such passion or provocation."

This definition is in the exact words in which it is said, in State v. Ellis, 74 Mo. 207, a jury may be instructed, and is commendable for its clearness and brevity, in case there is no evidence tending to show the existence of sudden passion. The authority of that case upon the question has never been questioned, so far as we are advised.

Section 3459, Revised Statutes, 1889, provides that every homicide which shall be be committed in the perpetration or attempt to perpetrate any robbery shall be deemed murder in the first degree. The question is as to whether there was any evidence to justify the court in instructing the jury upon that theory of the case? That there was, we think clear. There was no quarrel or disagreement between defendant and deceased before the latter assaulted him and knocked him down with a deadly weapon. On the contrary, they seem to have been good friends, spending the evening in excessive drinking and dissipation. There was, so far as the record discloses, no other motive for the homicide than robbery, which the evidence tends to show, and which under our statutes is made murder in the first degree and nothing else. Hence, nothing from this standpoint upon which to predicate an instruction for murder in the second degree, or for any of the degrees of manslaughter.

It is argued by defendant that proof of willful and intentional killing, will not alone raise the presumption of murder in the first degree; that the jury might have believed that the killing was not for the purpose of robbery, and from the proof of the killing alone, defendant could have been found guilty of murder in the second degree. But, as has been seen from the facts and circumstances attending the homicide, as before stated, there was nothing upon which to rest that theory of the case. The jury were instructed that if they believed from the evidence, beyond a reasonable doubt, that defendant struck and killed deceased with a deadly weapon, with intent to rob him, they would find him guilty of murder in the first degree. In such circumstances the...

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